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Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

Ms. Adamczyk's evidence regarding how she fell was weak, primarily because she had no memory of the event and only one witness observed part of the fall.  Ultimately the jury held that she did not prove that K-Mart was negligent.  Adamczyk's attorneys appealed.  They argued that K-Mart should not have been allowed to allege that Adamczk's employer was negligent and that the jury should have been instructed that K-Mart's "lost" safety reports created a presumption that K-Mart knew about the danger of the ladder. They also argued that K-Mart should not have been allowed to present evidence that it was unaware of any previous falls.

The Court recognized that "negative evidence" of no prior incidents is often unreliable, lacks a good foundation and may not be admitted.  Nevertheless, it held that the admission of this testimony in the instant case was not error as it was admissilbe either to show the condition of the ladder or lack of notice of any defect.

With regard to the fault of the plaintiff's employer, the Court held that a defendant always has the right to "pass the buck" in defending a claim of negligence--whether to a party or a non-party, even if the evidence and argument are directed solely to "causation."  Finally, with regard to the safety reports which a previous employee claimed he had authored, warning of the ladder's condition, the Court refused to use this as a basis to overturn the verdict.  The Court acknowledged that witness testimony established the relevance of the alleged reports and K-Mart stipulated that it could not produce them.  Nevertheless, the Court incorrectly placed the burden on the Plaintiff to prove that K-Mart was "unreasonable" in failing to produce the reports.  The Court held that the documents "may have been destroyed" by K-Mart in accordance with a vague document retention policy:  therefore, the judge's failure to properly instruct the jury was within the "range of reasonable and principled outcomes."

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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